HARDIN, P. J.
At the commencement of the trial the defendant’s counsel asked the direction of the court to the plaintiff’s counsel “to elect whether he will prosecute this action for deceit in *673tort, or whether for breach of warranty on contract.” Thereupon, the court observed: “As I understand it, it is announced to be an action for breach of warranty. * *" You do not claim now that there is anything but a breach of warranty?” To which question the plaintiff’s counsel replied, “That is all.” When the defendant was giving evidence, the question arose as to whether it was admissible to prove the rental value of the organ in the fall of 1887. In connection with the objection, the court observed, “If there was no warranty, then there is no liability.” Thereupon, the counsel for the defendant observed, “Do I understand the court takes the position that, if they can recover damages at all, it must be for a breach of warranty?” To which the court replied, viz.: “It must be for a breach of warranty, and nothing else. * * * You must defend this action upon the ground that you made no such representation, and that there was no warranty, or you fail to defend it, in my judgment; and they must maintain their action upon their complaint upon the ground that there was a warranty, and there was a breach of it. I think you are entitled to offset anything in this action that would offset the purchase price.” At the commencement of the charge the trial judge said, “This is an action brought by Minnie English against Joel Hanford to recover for a breach of warranty in the sale of an organ;” and further on he said: “The first question for you to proceed with, gentlemen, is, was there a warranty of this kind? Did he warrant it to be a new organ, unused?” And in referring to the question of damages the court used the following language: “If she has suffered any damages, gentlemen, I shall charge you that the rule of law in this case is that she is entitled to recover the difference between the value of a new organ as represented, unused, and this organ in the condition in which it was at the time it was delivered to her.” From the foregoing events and incidents occurring upon the trial, we think the action was treated as one upon a warranty, and damages were sought to be recovered for a breach of warranty, and that, unless the verdict can be maintained upon the theory that the plaintiff was entitled to recover for a warranty, it ought not to be sustained. At the close of the negotiations between the parties in respect to the organ, the plaintiff executed an instrument containing the following language:
■“$(35.00. Ithaca, Aug. 2d, 1887.
“One year after date, I promise to pay Joel Hanford sixty-five dollars, value received, as follows: Five dollars the first of every month until paid. When $65.00, with annual interest, is paid, Ithaca organ No. 9,058 is my property. Until paid, the title remains in said Joel Hanford, or holder of this, with the right to retake it out of my possession on default of payment as above specified.
[Signed] “Mrs. Wakeman English.”
Possession of the organ was given to and taken by her, and she remained in possession until after she had made default in complying with the terms of her contract with the defendant. She testifies the organ was taken from her possession July 23, 1892. She was in default in making her payments before the property was *674removed from her possession. The evidence clearly shows that she never completed her contract for the purchase, and that she never had a clear, full, absolute, unconditional title to the property prior to the commencement of this action. In Benjamin on Sales, under the head of Remedies of the Buyer, (at page 855,) are found the following words:
“But no action will lie on a warranty unless the title has fully passed to the buyer. Therefore, where the sale was conditional on payment of the full price which was due, in installments, and the last installment had not been paid, it was held in Frye v. Milligan, (1885,) 10 Ont. 509, that no remedy yet existed on the warranty.” Benj. Sales, (Bennett’s Ed. 1885.)
In Osborn v. Gantz, 60 N.Y. 540" court="NY" date_filed="1875-04-27" href="https://app.midpage.ai/document/osborn-v--gantz-3597055?utm_source=webapp" opinion_id="3597055">60 N. Y. 540, it was held, viz.:
“A warranty is an incident, only, of a completed sale. It has no present vitality and force in an executory contract of sale.”
2. It is now sought to maintain the verdict on the ground that the evidence would have justified a finding of fraud on the part of the defendant. The case was not submitted to the jury in that aspect, and, before the verdict shall be upheld that establishes the defendant's liability for fraudulent representations, he is entitled to a clear and intelligent presentment of the questions relating thereto to the jury. Mayo v. Knowlton, 134 N. Y. 251, 31 N.E. 985" court="NY" date_filed="1892-10-01" href="https://app.midpage.ai/document/mayo-v--knowlton-3632274?utm_source=webapp" opinion_id="3632274">31 N. E. 985. We think there should be a new trial ordered.
Judgment and order reversed, and a new trial ordered, with costs to abide the event. All concur.